Newspaper column: Lawmakers hand out unconstitutional corporate gift to another billionaire

Gov. Brian Sandoval signs a bill giving public tax money to build a football stadium. (AP photo by John Locher)

Gov. Brian Sandoval signs a bill giving public tax money to build a football stadium. (AP photo by John Locher)

Meeting in special session in Carson City this past week Nevada lawmakers opened the windows and threw caution and tax money to the wind, voting to raise the room tax rate in much of Clark County by 0.88 of a percentage point in order to contribute $750 million toward construction of a 65,000-seat domed football stadium estimated to cost $1.9 billion.

The measure, Senate Bill 1, passed by the constitutionally mandated two-thirds majority in both the Senate and Assembly – 16-5 in the Senate and 28-13 in the Assembly.

The stadium is being pushed by billionaire casino and newspaper owner Sheldon Adelson who promises to shell out $650 million from his rather deep pockets to pay for construction. The National Football League and the Oakland Raiders are supposed to contribute $500 million toward construction. The $750 million public sop is the largest ever by any public entity for a sports facility in this country.

All profits from stadium operations accrue strictly to the private investors.

At one point during the Assembly hearings, Assemblyman Ira Hansen of Sparks asked what happens if the stadium comes in under the $1.9 billion estimate. Would the taxpayers still be on the hook for the full $750 million?

Steve Hill of the Governor’s Office of Economic Development, which had touted the project, replied: “Technically that’s correct.”

Before Hill could elaborate, Hansen cut him off with a terse: “Thank you.”

So, if the project comes in closer to the original estimate of $1 billion, the taxpayers will pick up 75 percent of the cost and the billionaires keep their money.

One of those testifying against the public spending for a football stadium for the Raiders was former Las Vegas City Councilman Frank Hawkins, who noted that he played seven seasons for the Raiders, including winning a Super Bowl. Hawkins said billionaires don’t need the public tax money to fund 40 percent of their stadium. He also noted that Raiders owner Mark Davis had called to try to change his mind by agreeing to no television blackouts locally for games that are not sellouts.

SB1 creates a stadium authority to build and operate the stadium, exempts the authority from any legal requirements for competitive bidding and makes just about every financial deal cut by the authority exempt from public records laws.

The bill says “the Stadium Authority shall keep confidential any record or other document provided to the Stadium Authority by a developer partner, the National Football League team or the Stadium Events Company,” if asked to do so. The public will be kept in the dark about whether their “public” stadium is providing valuable public assets to a favored few at below market value.

The Legislature certainly has the power to create exemptions to existing laws.

What it does not have is the power to create exemptions to the state Constitution. That document has a Gift Clause, which states, “The State shall not donate or loan money, or its credit, subscribe to or be, interested in the Stock of any company, association, or corporation, except corporations formed for educational or charitable purposes.”

Self-styled economic development advocates have tried three times to amend the Constitution and remove the Gift Clause. The voters rejected those attempts all three times — in 1992, 1996 and again in 2000 by wide majorities.

The state Supreme Court has said that when the state provides something to a private entity without getting adequate compensation for the value, that is a gift and thus a violation of the Constitution.

Nevada’s high court has cited an Arizona Supreme Court ruling on that state’s nearly identical Gift Clause. The Arizona court said its Gift Clause “represents the reaction of public opinion to the orgies of extravagant dissipation of public funds by counties, townships, cities, and towns in aid of the construction of railways, canals, and other like undertakings during the half century preceding 1880, and it was designed primarily to prevent the use of public funds raised by general taxation in aid of enterprises apparently devoted to quasi public purposes, but actually engaged in private business.”

Professional football hardly qualifies as even a quasi public purpose unless you include “bread and circuses.”

This was the third special session in as many years. The previous two handed out billions in tax breaks and abatements to the billionaire owners of electric car companies Tesla and Faraday Future.

Perhaps some public spirited group will ask the courts to take a look at this latest generous gift and determine whether it truly is for a public purpose.

A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.

Update: Space was insufficient to provide this quote from a Nebraska court ruling:

“Every new business, manufacturing plant, or industrial plant which may be established in a municipality will be of some benefit to the municipality. A new super market, a new department store, a new meat market, a steel mill, a crate manufacturing plant, a pulp mill, or other establishments which could be named without end, may be of material benefit to the growth, progress, development and prosperity of a municipality. But these considerations do not make the acquisition of land and the erection of buildings, for such purposes, a municipal purpose. Our organic law prohibits the expenditure of public money for a private purpose. It does not matter whether the money is derived by ad valorem taxes, by gift, or otherwise. It is public money and under our organic law public money cannot be appropriated for a private purpose or used for the purpose of acquiring property for the benefit of a private concern. It does not matter what such undertakings may be called or how worthwhile they may appear to be at the passing moment. The financing of private enterprises by means of public funds is entirely foreign to a proper concept of our constitutional system. Experience has shown that such encroachments will lead inevitably to the ultimate destruction of the private enterprise system.”

This and the Arizona court ruling were cited by the the Nevada Policy Research Institute’s Center for Justice and Constitutional Litigation in its case against the Governor’s Office of Economic Development for handing out state gifts to companies such as SolarCity.



What, oh what, to call politicians who flip-flop on an issue in a single day?

I can’t decide if they are dithering dolts or vacillating varlets or wavering wastrels.

Eight Republicans this week voted against amending a Senate bill to allow concealed carry permittees to carry their concealed weapons on college campuses, but seven of them later joined as sponsors of a new bill (Assembly Bill 487) that would accomplish the same thing, according to the Las Vegas newspaper account today. The Assembly vote against the amendment was 24-18.

Can’t tell whether they grew new spines or were kicked in the butt. The paper lists the seven changelings as Assembly members James Oscarson, Jim Wheeler, Melissa Woodbury, Derek Armstrong, Chris Edwards, Stephen Silberkraus and Lynn Stewart. Majority Leader Paul Anderson, who also voted against amending the Senate bill, is not listed as a sponsor.

On Friday conservative activist Chuck Muth sent an email missive listing the eight Republicans who voted against the “campus carry” amendment along with their phone numbers. He called them shameful and quoted another conservative activist, Tony Warren, as saying, “Remember these names. They are not worthy to serve as our representatives. Damn them to HELL.”

Muth included this detail of the events:

Our good friend Janine Hansen at Nevada Families reported on another aspect of this shameful display of betrayal and cowardice yesterday.

Assembly Speaker-of-the-Weak John Hambrick called for a voice vote on the SB175/AB148 hybrid gun bill.  He ruled from the chair that the vote was too close to call and ordered a “division of the house.”

A division of the house simply means everyone who supports the bill stands up and the total is counted, and then everyone who opposes the bill stands up to be counted.

The problem with that is that each individual legislator is allowed to escape casting a RECORDED vote in the official record.

So conservative Assemblywoman Michele Fiore – God bless her – stood up and asked for a roll-call vote.

Hambrick ruled her out of order and rejected the request.

Fiore than asked for a one-minute recess – a request that rarely, if ever, is denied.

Hambrick rejected her request.

(“So he (Hambrick) was in league with the anti-gun rights Republicans,” ((Janine)) Hansen wrote. “This is a disgrace!!! Why elect Republicans when they betray us on the most basic liberty issues like self defense?”)

Darned good question.  But back to Fiore…

After being shot down by Hambrick, the Las Vegas Republican immediately left the Assembly chamber and headed to her office where she called the lead lawyer at the Legislative Counsel Bureau (LCB), Brenda Erdoes, to ask if Hambrick really had the power to deny a request for a roll-call vote and/or one-minute recess.

But to give you an idea of just how paranoid and unhinged some folks are in Carson City about Fiore, apparently somebody thought she might have left the chamber to go get her gun and was afraid she’d come back and shoot the place up.

So, I’m told, legislative police were called to the first floor to secure the Assembly chamber and block Fiore from returning to her seat!


Eventually, Fiore was allowed back on the floor and later in the day rose and issued a statement, FOR THE RECORD, identifying by name the eight Republicans who turned tail and ran when the heat got too hot in the kitchen and sold out campus carry supporters.

The Review-Journal reported that Republican Assembly Judiciary Chairman Ira Hansen criticized the creation of the new bill as an effort to gain “political cover.”

“And that is a huge mistake politically, and it was the wrong thing to do, and they abandoned their own party’s base,” he is quoted as saying of the votes against the campus carry amendment. “And now what they want to do, is come back when it is not going to make any difference and they know it, and have me go through the whole hearing process again as we already did on (AB)148, to give them political cover.

“And I think it stinks, and I think we had a shot if they would have stuck to their guns. …

“So they chickened out, they caved in on the whole issue and now they want to come back and pretend like they are going to be the heroes and resurrect the bill.”

Michele Fiore speaks on the Assembly floor Friday. (R-J photo)

The Reno newspaper account simply said:

Fiore stormed out of the chamber after that vote was taken when Speaker John Hambrick, R-Las Vegas, refused to call for a roll call vote on the issue or stop the floor session for a brief time out.

She later returned and apologized.

Muth just posted a follow-up this morning under the headline: “Who Shot Campus CarryA Muth’s Truths Investigation – Part I.”

In this posting Muth notes that Gov. Brian Sandoval does not want a campus carry bill to make it to his desk and force him to veto it and suggests certain Republicans are trying to protect him.


Bill to change state’s anti-SLAPP law survives with revisions

After being declared dead, that bill to weaken the state’s anti-SLAPP (Strategic Lawsuit Against Public Participation) law has reared its ugly head.

According to the Las Vegas newspaper, a version of Senate Bill 444 was approved by the Assembly Judiciary Committee, albeit a much less draconian version.

This version restores the “clear and convincing” standard for having a lawsuit dropped, instead of the bill’s previous standard of “prima facie,” changes some deadlines and allows some discovery at the motion to dismiss stage. It also restores a $10,000 award for those wrongfully sued.

It is still an unnecessary tampering with a strong law. The Senate, which the prior version unanimously, would have to agree with the changes, and there is not much time left.


Anti-SLAPP bill appears to be dead

It appears the bill that would weaken Nevada’s strong anti-SLAPP (Strategic Lawsuit Against Public Participation) law is dead.

Assemblyman Ira Hansen, a former newspaper columnist and chair of the Assembly Judiciary Committee, which heard hours of testimony for and against the bill after it unanimously passed the state Senate, has told the Las Vegas newspaper it will not come up for a vote in his committee today, which is the deadline to keep legislation alive in this session.

Good riddance.

Assembly committee finally hears opposition to bill that would weaken state’s anti-SLAPP law

A bill to drastically alter Nevada’s strong anti-SLAPP law (Strategic Lawsuit Against Public Participation) breezed through state Senate where never was heard a disparaging word. The only testimony in the Senate Judiciary Committee was from a California attorney who helped draft the bill on behalf of Wynn Resorts, whose owner over the years has filed a few defamation suits against those who commented about him in a manner he did not like.

This morning the Assembly

Marc Randazza

Marc Randazza

heard nearly three hours of testimony for and against Senate Bill 444 — previously discussed here and here.

That aforementioned California attorney, Mitchell Langberg, and Senate Judiciary Chair Greg Brower said the bill restores balance to state anti-SLAPP law because a 2013 revision went too far in favor of defendants, and now those who have been damaged by defamatory comments have too great a burden to prove their case and face crippling court costs and attorney fees if they fail to show there is clear and convincing evidence in their favor. They argued for SB444’s standard of proof, which requires only prima facia evidence.

Brower accused those who now come out in opposition to the bill of using exaggerated rhetoric. He singled out a Las Vegas newspaper editorial this week that said: “SB444 would amend Nevada’s anti-SLAPP law by erasing the provision that provides defendants with penalty compensation; by shifting the burden of proof to defendants and requiring them to show a plaintiff’s claims are false; and by giving plaintiffs more time for discovery, which would ensure that claims take longer to litigate and are capable of bankrupting defendants.”

Brower denied the bill shifts the burden, though it does change the criteria for plaintiffs from clear and convincing to only prima facia.

The bill does include “limited discovery,” which one committee member noted can be quite expensive. The bill still allows a successful defendant to recover costs, but it would repeal a section that allows $10,000 in damages to a successful defendant.

Langberg at one point seemed to imply that the only recourse for a person who had been falsely accused — in an Internet business review for example — was vindication by a jury. Can’t people effectively counter false speech with truthful speech? And are people so gullible that they really believe whatever salacious slander they read on the Internet?

Langberg made a point of noting that the Nevada Constitution guarantees freedom of speech but also says people are responsible for the abuse of that right.

Article 1, Section 9 says:

“Every citizen may freely speak, write and publish his sentiments on all subjects being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press. In all criminal prosecutions and civil actions for libels, the truth may be given in evidence to the Jury; and if it shall appear to the Jury that the matter charged as libelous is true and was published with good motives and for justifiable ends, the party shall be acquitted or exonerated.”

 Truth is a defense, but SB444 deletes a section of the current law that declares immune from litigation a communication “which is truthful or is made without knowledge of its falsehood.”

Both Trevor Hayes, a former Review-Journal business writer and now an attorney representing the Nevada Press Association, and John L. Smith, a longtime R-J columnist and book author, both said the proposed change to the anti-SLAPP law could have a chilling effort on reporting and commentary across all media. Hayes noted that newspapers today are far less profitable and a major consideration about publishing a story would be whether it could cost the paper hundreds of thousands of dollars in litigation cost.

Attorney Marc Randazza, who helped draft the current law, countered SB444 proponents who said no other state has such a strong anti-SLAPP law by saying states such as Ohio, Pennsylvania and Florida are considering adopting statutes similar to Nevada’s. He said he would have no problem acting as an attorney for a person who believes he or she has been defamed, desite Nevada’s strong anti-SLAPP law, because he does his homework and makes sure he has the evidence.

“Frankly, I do get calls, frequently, from people who ask me, ‘Won’t just file it? I know we don’t have much chance of winning, but we’ll drag these guys into discovery and they don’t want that,'” Randazza said. “When that happens I do hear the cash register ringing in my ears. And I think I could keep this case going for 18 months or so. I don’t use my law license that way. I won’t do it, because I believe in freedom of expression and I don’t believe in bullying people with lawsuits designed to suppress their First Amendment rights.”

One witness who said he writes about online poker said he would move to Texas if SB444 passes rather than face the risk of litigation.

Others said companies have moved to Nevada because of its free speech protections embodied in law.

The committee, chaired by Republican Ira Hansen, a former columnist for the Sparks Tribune, was adjourned without taking a vote.

Here is testimony by columnist Smith:

Attorney Allen Lichtenstein, formerly with the ACLU, is on Smith’s left and also testified against the bill. Though the suit against Smith was dismissed, he was not awarded costs and fees.

The hearing on SB444 can be seen online. It begins 30 minutes into the meeting.





Newspaper column: Holding the line on taxation will take only 15 Assembly members

At this point, perhaps the best we can hope for is gridlock.

The 2015 session of the Nevada Legislature is only a month away — 120 days during which our lives, liberties and property, especially our property, will be in jeopardy, as Mark Twain once opined.

In the November election, nearly 80 percent of the state’s penurious voters defeated a proposal to increase business taxes to fund education and for the first time in 85 years elected Republican majorities to both the Assembly and state Senate. This will complement the Republican governor, as well as all other statewide constitutional offices. The Assembly has 25 Republicans and 17 Democrats. The Senate has 11 Republicans and 10 Democrats.

It shouldn’t take a reading of the tea leaves to figure out what the voters want, but nonetheless broad hints are being bandied about that Nevadans simply aren’t taxed enough already and surely we can afford to fork over another billion dollars or so.

Nevada Legislative building (R-J photo)

Even Republican Gov. Brian Sandoval has flatly refused to rule out the possibility of floating a tax hike.

State agencies have submitted budgets that total $7.7 billion in spending in the next biennium, while the Economic Forum has projected the current taxes will raise only $6.3 billion.

“Today’s Economic Forum report reminds us yet again that our revenue structure is not built to meet the demands of our changing economy nor our continued increase in statewide population,” Sandoval said in a statement when the projection was made.

Since the election that Republican majority has turned on itself in what can best be described as a circular firing squad.

First, the Republican caucus’ newly elected speaker, Ira Hansen of Sparks, was hoisted on his own petard — a series of two-decade old newspaper columns that did not mince words while mincing Democrats. But his criticism of how the Democrats treated blacks was misconstrued as being offensive to blacks, so Hansen stepped down as speaker.

Up stepped John Hambrick of Las Vegas as speaker. When old reports about Republican majority leader and Taxation Committee chair Michele Fiore’s troubles with the IRS resurfaced, Hambrick removed her from both jobs, only to reinstate her the next day, only to remove her again a few days later after Fiore explained her situation on the radio.

Fiore, a fiscal conservative who has pledged to not raise taxes, blamed her tax woes on a former employee and said she is making payments to the IRS. But she also claimed she was targeted by a Republican fund-raiser and two paid political consultants, one of whom has worked for Hambrick.

At this point, I’m not sure the Republican caucus can put together a foursome for a game of Bridge, much less a coherent, fiscally conservative collation that can cut spending and hold the line on taxation.

And there are still rumors that a few renegade Republicans could join with the 17 Democrats when the Legislature opens and elect someone other than Hambrick as speaker of the Assembly.

The saving grace may lie in former Republican Gov. Jim Gibbons’ constitutional amendment that requires a two-thirds vote of both the Assembly and Senate to increase taxes.

That means 15 members of the Assembly can block any tax hike proposal.

The Assembly Republicans appear to be almost evenly split between fiscal conservatives and moderates.

Gridlock may be our best hope.

This column is available online at The Ely Times, the Mesquite Local News and Elko Daily Free Press.

Just feeling the vexation without representation

Assemblyman Wes Duncan

Well there goes my representation in the state Legislature.

First, my Republican state senator, Mark Hutchison, gets elected lieutenant governor, now my Republican Assembly representative, Wes Duncan, gets appointed chief assistant by Attorney General-elect Adam Laxalt.

Who fills those vacancies?

Of course, the all-Democrat Clark County Commission. There is an online application form to apply for Hutchison’s seat, and I suppose there will be one for Duncan.

I would be tempted to apply, but with all the things I’ve written over the past 40-plus years, I’d probably get Ira Hansened.